1.1 Reproductive Technologies, Bioethics and the Rise of New Human Rights Claims
The central claim of this book is that the regulation of reproductive technologies ought to promote, to the fullest extent and subject only to the prevention of harm to others, the ‘unalienable’ right to ‘the pursuit of Happiness’, robustly affirmed in one of the oldest and most famous statements on human rights.Footnote 1 Restrictions on access to reproductive treatment facilitating that pursuit should not be dictated by techno-conservative prejudice or the unease with the triumph of human design over nature. Rather, medically assisted procreation should be governed by the principles of respect for individual self-determination and tolerance of diverse notions of self-fulfilment. For instance, one person’s endeavour to conceive a child free from disability should not be undermined by another’s perception that laws accommodating preferences for healthy offspring devalue existing disabled people.Footnote 2 Similarly, the indifference to genetic ties of those who view parenthood as the experience of raising a child cannot dilute the interest others have in perpetuating their family line and genetic heritage.Footnote 3 Individuals unable to have a biological child with their chosen partner without recourse to surrogacy or gamete donation should not face blanket objections from others, unaffected by infertility, based on opaque rhetoric about the dignity of the human body; instead, the focus ought to be on regulation capable of excluding exploitative elements and safeguarding the well-being of any resulting children.Footnote 4
Drawing on an ever-growing body of international case law, particularly prolific in the European Court of Human Rights (ECtHR), the book maintains that respect for autonomy and family life should be construed as entitling an individual to, at least, the following set of procreative rights: the right to have a biologically related child through any route permitted by medical advances in reproduction, such as the use of donor gametes for in vivo and in vitro fertilisation, whether as a single aspiring parent or as part of a couple; the right to posthumous procreation, using cryopreserved gametes or embryos, with the prior (express or inferable) consent of both gamete providers; the right to pursue the conception of a healthy child to the greatest extent of medical capabilities, for instance, through recourse to prenatal tests enabling either selective abortion or prenatal therapy and the screening of embryos for genetic illnesses though preimplantation genetic diagnosis; the right to the recognition of parenthood following surrogacy arrangements compliant with the law of the forum, without additional hurdles for the intended parent who is also biologically related to the child; the right to the recognition of intention-based parenthood for the spouse/partner of a genetic parent when they embarked jointly upon a procreative project involving third-party contributions (gamete donation or surrogacy).
The book acknowledges not only the limited progress towards the recognition of such rights in international litigation to date but also the possible objection to the application of the human rights narrative to assisted reproduction policies. In fact, the past few decades have witnessed a substantial proliferation of human rights treaties and the expansive interpretation of rights in international courts and quasi-judicial bodies; at the same time, the idea that human rights hold the answer to any controversy arising in society has been met with scepticism. Hurst Hannum has argued that complex social problems cannot be resolved by a one-dimensional appeal to fundamental rights:
Human rights were never intended to provide a solution to all of the world’s problems, and those who offer human rights as a panacea for such problems do a disservice both to human rights and to the causes they seek to promote. Many of the criticisms in this book are directed at the unrealistic expansion or overreach of human rights, which undermines their legitimacy and acceptance.Footnote 5
While not every new claim is amenable to human rights analysis, international human rights law has developed the tools required to achieve principled, legitimate, cross-border minimum standards in the regulation of life sciences, including medically assisted procreation. In fact, ethics, politics and social change are already embedded in the human rights framework. Concerns pertaining to public health, morality and any other competing public and private interests are absorbed by the clawback clauses contained in human rights treaties, which limit the exercise of most rights.Footnote 6 Moreover, the protection of non-persons such as the human embryo, the foetus or the child yet to be conceived, albeit apparently left out of the rights discourse (focused on existing individuals) – indeed a criticism sometimes raised by bioethicistsFootnote 7 – can be achieved through the open-textured references to morals and ordre public in those clauses. International human rights courts have accommodated State policies oriented towards the protection of such interests, occasionally at the expense of reproductive autonomy, for instance, by viewing embryos/foetuses as belonging to the human race and entitled to protection in the name of human dignity, even if they are not rights holders (e.g. in cases regarding embryo selection against genetic illness, therapeutic abortion, the donation of embryos for research), or by allowing concerns over the to-be-born child’s welfare to compete with, and possibly prevail upon, the rights of aspiring parents (e.g. in posthumous or heterologous conception cases).Footnote 8 Consequently, restrictions upon procreative freedom incapable of justification under human rights law are unlikely to be saved by bioethical or other arguments.
Additionally, international human rights law, as a well-established system of values and procedures, has the ability to provide transnational and non-culturally dependent responses to bioethics concerns.Footnote 9 As Robert Baker has noted, human rights discourse ‘is already the accepted language of international ethics’.Footnote 10 It therefore has the potential to achieve shared standards in new and challenging areas of bioethics. The impact of the rights discourse in the medical context to date was usefully described by Daniel Sperling as threefold: empowering patients in the relationship with their physician by conferring control over treatment and ensuring respect for privacy, autonomy and bodily integrity (e.g. informed consent to treatment); providing security from State intervention in accessing medical assistance for health-related goals (e.g. abortion, end-of-life decision-making); and promoting a right to access healthcare services, including services enhancing reproductive freedom (e.g. posthumous insemination).Footnote 11 Not only does international human rights law come with a universal moral claim, based on widespread consensus, but it also provides binding norms and an accepted enforcement machinery. Elizabeth Fenton has highlighted the strategic benefits of human rights law as a foundation for bioethics:
As part of a legal regime, human rights carry significantly more weight than ethical principles that may be ignored without consequence. Bioethics may benefit from yoking itself to a doctrine with significant legal clout on the global stage. … Taking the language of human rights as its foundation could allow bioethics to advance its goals on the wheels of this established political machine.Footnote 12
It is also worth recalling that bioethical concerns, such as the prohibition on medical human experimentation, found an early embodiment in human rights and humanitarian law, specifically in the 1949 Geneva ConventionsFootnote 13 and the International Covenant on Civil and Political Rights (ICCPR).Footnote 14 The relationship between human rights and bioethics has also been acknowledged in soft law instruments such as UNESCO’s 1997 Universal Declaration on the Human Genome and Human RightsFootnote 15 and its 2005 Universal Declaration on Bioethics and Human Rights.Footnote 16 In its Explanatory Memorandum on the elaboration of the latter, the Drafting Group mandated by UNESCO, a consultative committee of independent experts, stressed ‘the importance of taking international human rights legislation as the essential framework and starting point for the development of bioethical principles’Footnote 17 and recognised that ‘declarations and documents on bioethics should be in harmony with human rights’.Footnote 18 Interestingly, the Drafting Group had been originally entrusted with drafting an instrument entitled ‘Universal Declaration on Bioethics’, and the ‘Human Rights’ addition was the product of the experts’ reflection on the need for bioethical norms to be consistent with human rights principles. The Explanatory Memorandum emphasised this key objective of the Universal Declaration on Bioethics and Human Rights: ‘to establish the conformity of bioethics with international human rights law’.Footnote 19 The drafters also acknowledged the anchorage of the notions of personal autonomy and human dignity in international human rights law:
Respect for personal autonomy is strongly linked to … the notion of human dignity. It is directly derived from binding international human rights law. Individuals cannot be instrumentalized and treated merely as means to a scientific end; they should be granted the authority to make autonomous decisions in all aspects of their lives where their decisions do no harm to others.Footnote 20
Furthermore, the human rights discourse permeates the way in which restrictions on the operation of bioethical norms are worded in UNESCO’s Explanatory Memorandum, in a language reminiscent of Article 8 of the European Convention on Human Rights (ECHR) and its case law interpretation:
Restrictions may be placed on the operation of the principles set out in the declaration only in accordance with international human rights law, and then only if they are prescribed by domestic law and only when such restrictions are necessary in a democratic society in the interest of public safety, for the prevention of crime, for the protection of public health or for the protection of the rights and freedoms of others. In choosing between various possible restrictive measures, proportionality has to be respected, because, when a restriction is considered to be necessary in accordance with the foregoing principles, rights derived from principles may then be restricted only in the least restrictive manner and only to an extent proportional to the legitimate end of the restriction.Footnote 21
In addition to these developments at universal (UN/UNESCO) level, international regional instruments tend to align bioethics with human rights, supporting an increased role for human rights law applications in the field of biosciences. Under the aegis of the Council of Europe, the 1997 Oviedo Convention on Human Rights and BiomedicineFootnote 22 afforded the ECtHR jurisdiction to interpret its provisions, albeit only in the form of advisory opinions on legal questions and at the request of Member States.Footnote 23 Moreover, the Oviedo Convention, postulating the ‘primacy of the human being’, follows the same individualistic, non-utilitarian philosophy typical of human rights instruments: ‘The interests and welfare of the human being shall prevail over the sole interest of society or science.’Footnote 24 Significantly, this tenet was echoed verbatim in UNESCO’s 2005 Universal Declaration on Bioethics and Human Rights.Footnote 25 Like the ECHR and its UN/regional counterparts, the Oviedo Convention contemplates restrictions on the rights protected; notably, the language of its Article 26(1), regulating such restrictions, closely emulates the standard phraseology of human rights treaties:
No restrictions shall be placed on the exercise of the rights and protective provisions contained in this Convention other than such as are prescribed by law and are necessary in a democratic society in the interest of public safety, for the prevention of crime, for the protection of public health or for the protection of the rights and freedoms of others.
The Oviedo Convention also lists several norms not subject to restrictions. According to Article 26(2), the restrictions in Article 26(1) may not be placed on Articles 11, 13, 14, 16, 17, 19, 20 and 21. Several of these exceptions are potentially relevant for the regulation of assisted procreation: non-discrimination on grounds of genetic heritage (Article 11); the admissibility of interventions on the human genome only for preventive, diagnostic or therapeutic purposes (Article 13); non-selection of sex, except to avoid serious sex-related hereditary disease (Article 14); and the prohibition of the use of the human body and its parts for financial gain (Article 21).
The strategy of appealing to the human rights framework in the instruments addressing bioethical issues produced by UNESCO and the Council of Europe can be explained, according to Roberto Andorno, by several factors: the link between biomedical activities and basic human rights (life, physical integrity); the ‘universalistic claim of human rights, which facilitates the formulation of transcultural standards’; the fact that the vague notion of human dignity, ‘the cornerstone of global bioethical norms’, necessitates more concrete notions in order to operate, borrowed from human rights terminology, for example, informed consent, physical and mental integrity, non-discrimination, privacy, confidentiality, protection of vulnerable persons, access to healthcare; and the practical availability of mechanisms for global normative foundations.Footnote 26 Although this strategy has not been without detractors,Footnote 27 the human rights system remains unparalleled in its international reach and effectiveness; in fact, no binding mechanism, with the added fast-paced transformative power of international jurisprudence, has emerged for the governance of bioethics as a standalone field.
At the same time, the relationship between human rights and bioethics is a dialogical one. The Strasbourg Court has relied on bioethical instruments to develop the principles of the European Convention.Footnote 28 References to the Oviedo Convention on Human Rights and Biomedicine can be found in numerous judgments,Footnote 29 and UNESCO’s Universal Declaration on Bioethics and Human Rights has also made its way into the case law.Footnote 30 Additionally, there are Strasbourg decisions citing other initiatives of the Council of Europe in the area of bioethics, in particular references to the work of its Steering Committee on Bioethics and the expert Council-of-Europe body preceding it.Footnote 31 This interpretive method is rather uncontroversial. Bioethical instruments adopted by the Council of Europe’s States constitute relevant practice for the interpretation of the ECHR within the meaning of Article 31(3) of the Vienna Convention of the Law of Treaties, either as ‘subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation’ or as ‘relevant rules of international law applicable in the relations between the parties’.Footnote 32
Consequently, in turn, bioethical standards have assisted the process of updating human rights law, particularly within the ECHR framework, so as to respond to divisive questions in the field of reproductive technologies.Footnote 33 Although the rights advocated for in this book are still the subject of vast controversy, ethical diversity finds a limit in the universality of fundamental human rights, which encompass minimum values shared by democratic societies.Footnote 34 To that extent, they offer analytical tools comparable to the core principles of biomedical ethics (acceptable to everyone regardless of their ethical stance), as famously theorised by Tom Beauchamps and James Childress: respect for autonomy, non-maleficence, beneficence and justice.Footnote 35 A human rights–driven regulation of genetic technology is likely to increase the protection of aspiring parents by adequately probing the aims of restrictions and weighing the impact of societal gains on individual autonomy and self-fulfilment.
While genetic technologies developed after the adoption of general human rights treaties and could not inspire the inclusion of specific guarantees, some of the existing norms had the potential to accommodate a right to assisted reproduction,Footnote 36 in particular the ‘right to respect for private and family life’ in Article 8 ECHR (and corresponding provisions in the ICCPRFootnote 37 and the American Convention on Human Rights (ACHR))Footnote 38 and the ‘right to found a family’ in Article 12 ECHR (and its ICCPR/ACHR equivalents).Footnote 39 Although doubts were expressed vis-à-vis a future reinterpretation of the ECHR placing a positive duty on States to provide human fertilisation treatment,Footnote 40 the judicial practice has proved bolder than anticipated. The Strasbourg Court has unequivocally established that the notion of private and family life incorporates the right to respect for the decision to become a genetic parent,Footnote 41 and that the choice to make use of medically assisted procreation in order to conceive a child is an expression of private and family life protected by Article 8.Footnote 42 Mulligan has noted that the location of the legal basis for assisted reproduction claims can be significant: ‘If they are protected by the right to respect for private life then they are enjoyed by all people, married, in a relationship or single. If they are based on the right to respect for family life they may not be enjoyed by single people at all.’Footnote 43 The Court appears to cite ‘private life’ when the applicant is a single aspiring parentFootnote 44 and ‘private and family life’ when the applicants are a couple,Footnote 45 without discernible consequences. More importantly, the ECtHR has relied on Article 8, rather than Article 12, to develop procreative rights, dissociating them, to some extent, from marriage and coupledom.
At the same time, as an international tribunal, the Strasbourg Court has been slow to establish prescriptive obligations in the area of medically assisted procreation and to interfere with Member States’ policy choices. This reflects a more general self-restraint tendency in the Court’s bioethical jurisprudence; whenever a claim touches upon the sensitive and contested area of bioethics, and especially when there is no evidence of European consensus on the matter before it, the Court affords States a wide margin of appreciation. For instance, in Vo v. France, the absence of European consensus on the scientific and legal definition of when life begins led the Court to conclude that States retained a wide margin of appreciation as to whether the Article 2 ‘right to life’ protection applies to the foetus and, in such an event, if medical errors resulting in involuntary abortion fall under homicide and manslaughter laws.Footnote 46 In vitro fertilisation (IVF) treatment has inspired a similar approach:
Since the use of IVF treatment gives rise to sensitive moral and ethical issues …, and since the questions raised by the case touch on areas where there is no clear common ground amongst the member States, the Court considers that the margin of appreciation to be afforded to the respondent State must be a wide one.Footnote 47
Nevertheless, the Court’s case law has increasingly recognised that Article 8 imposes certain minimum obligations as regards the provision of assisted reproductive treatment (ART), some construed as obligations of abstention and some requiring positive measures calculated to ensure the effective enjoyment of the right. It has been argued that a clear distinction exists between the negative right not to be physically coerced in one’s reproductive choices and the positive right to assisted conception, in that the failure to provide fertility treatment would not be an outrage of the same order as forced abortion or sterilisation.Footnote 48 However, the ECtHR has interpreted most ART claims as engaging active interferences (i.e. obstacles to using certain reproductive techniques such as sperm or ova donation, IVF treatment, preimplantation genetic diagnosis, posthumous insemination) and, therefore, through the lens of negative obligations. The relevance of this distinction will be discussed in the following section.
1.2 Reproductive Freedom between Negative and Positive Obligations
1.2.1 Classic Negative Obligations in Relation to Natural Procreative Capacity
Any active interference by public authorities with a person’s decision or physical ability to procreate engages States’ negative obligations to respect private and family life and the right to found a family. International law requires States to refrain from placing constraints on an individual’s parenthood plans, such as the timing, number or spacing of children. Article 4 of the Declaration on Social Progress and Development, proclaimed by the UN General Assembly in 1969, established that ‘parents have the exclusive right to determine freely and responsibly the number and spacing of their children’.Footnote 49 Demographic policies limiting the number of children a family is permitted to have, the practices of forced sterilisation and forced abortion, as well as any coerced family planning methods will place the State in breach of international human rights law.Footnote 50 Mariblanca Staff Wilson has observed that the importance of reproductive rights in international law is confirmed by the classification of forced sterilisation or pregnancy as international crimes in the Rome Statute of the International Criminal CourtFootnote 51 (crime against humanity, war crime, element of genocide).Footnote 52 The Chinese ‘one-child policy’ was tangentially before the UN Human Rights Committee in X.Q.H. v. New Zealand.Footnote 53 The author of the communication indicated that her deportation to China would prejudice her New Zealander son in that, as a second child, he would be considered a ‘black child’, resulting in the denial both of registration as part of the household and of access to medical care, education or employment, unless the parents paid a substantial fine for breaching family planning regulations.Footnote 54 The complaint was dismissed as hypothetical, insofar as the author’s marriage to a New Zealand citizen and obtainment of a work visa rendered those concerns moot, and hence she could not claim victim status.Footnote 55 Express confirmation of the principle against forced contraception or sterilisation came from several judgments issued by the ECtHR, which clearly establish not only negative obligations (to refrain from interfering with a person’s reproductive capacity) but also positive obligations (to protect against third-party interference, including through an adequate legislative and regulatory framework – for example, criminal legislation capable of deterring perpetrators).
The Strasbourg Court held in V.C. v. Slovakia and N.B. v. Slovakia that sterilisation without the patient’s full and informed consentFootnote 56 violates both Articles 3 and 8 ECHR. From the viewpoint of Article 3, sterilisation ‘constitutes a major interference with a person’s reproductive health status’, with repercussions on ‘manifold aspects of the individual’s personal integrity including his or her physical and mental well-being and emotional, spiritual and family life’;Footnote 57 consequently, its imposition without consent is ‘incompatible with the requirement of respect for human freedom and dignity’.Footnote 58 In N.B., where the patient was seventeen, ‘at an early stage of her reproductive life’, the sterilisation ‘grossly interfered with her physical integrity, as she was thereby deprived of her reproductive capacity’.Footnote 59 Moreover, the conduct of medical staff – in asking the patient to agree to the removal of an important capacity while in labour, with her cognitive abilities impaired by tranquilising medication, and in wrongfully indicating to her that the procedure was indispensable to preserve her life – ‘was grossly disrespectful of her human dignity’.Footnote 60 In relation to Article 8, the judgments found that the deprivation of reproductive capability interfered with patient autonomy, but also had repercussions on various aspects of private and family life.Footnote 61
I.G. and M.K. v. Slovakia condemned a fortiori the sterilisation of two Roma women during a caesarean delivery in a public hospital without their consent or knowledge; the procedure – not a life-saving intervention and performed without prior informed consent – was deemed incompatible with respect for human freedom and dignity, despite doctors’ belief that a further pregnancy would threaten the patient’s life and health.Footnote 62 Moreover, the length of both civil and criminal proceedings instituted against those responsible for the forced sterilisation breached the procedural aspect of Article 3, which requires a prompt investigation.Footnote 63
In all these cases, the Court noted the widespread practice of sterilisation of Roma women without informed consent in SlovakiaFootnote 64 and emphasised the State’s positive obligations under Article 8 to put in place effective safeguards for the protection of the reproductive health of Roma women.Footnote 65 It concluded that the respondent had failed to comply with ‘its positive obligation to secure to them a sufficient measure of protection enabling them to effectively enjoy their right to respect for their private and family life’.Footnote 66
Regrettably, in forced sterilisation cases, the ECtHR tends to focus almost exclusively on the affront to human dignity, self-determination and bodily integrity, with rather limited acknowledgement of procreative interests. In V.C. and I.G. and M.K., having found a violation of Article 8, the Court did not consider it necessary to proceed to a separate examination of the complaints under Article 12.Footnote 67 The Court reasoned that ‘the exercise of the right to marry and found a family gives rise to personal, social and legal consequences as a result of which there is a close affinity between the rights under Articles 8 and 12 of the Convention’.Footnote 68 The complaint that forced sterilisation breached the victims’ right to found a family, and that the respondent had failed to take adequate preventative measures,Footnote 69 arguably deserved further analysis and the recognition of an additional violation.
Article 3 was also the Court’s focus in forced abortion cases. The recent S.F.K. v. Russia judgment concerned an abortion performed in a public hospital without adequate care by State-employed health professionals to ensure that the patient freely consented to the procedure.Footnote 70 Considering the patient’s young age, her dependency on her parents, who pressurised her into the abortion, and the negligence of medical staff witnessing these circumstances, this was seen as a case of forced abortion ‘contrary to the applicant’s human dignity’ and ‘an egregious form of inhuman and degrading treatment’.Footnote 71 Although the applicant lamented a violation of Article 8, the Court did not find it necessary to examine it separately, given its findings under Article 3.Footnote 72 In its brief assessment of admissibility of the Article 8 claim, it reaffirmed, nevertheless, that ‘the decision of a pregnant woman to continue her pregnancy or not belongs to the sphere of private life and autonomy’.Footnote 73 A stronger statement to the effect that forced abortion constitutes a breach of a person’s private and family life under Article 8 would have been desirable; the Court’s characterisation of the woman’s loss of her unborn child as ‘a serious immediate damage to her health’Footnote 74 does not reflect the free-standing importance of parenthood rights.
The Court chose to concentrate on human dignity issues again in G.M. and Others v. The Republic of Moldova, where it condemned the authorisation of involuntary abortions and contraceptive measures (implantation of intrauterine devices) in respect of intellectually disabled women with legal capacity institutionalised in a neuropsychiatric residential asylum.Footnote 75 The Court found both substantive and procedural obligations under Article 3 breached by the lack of safeguards against, and adequate investigation into, the administration of such invasive medical procedures without the informed consent of patients living in psychiatric institutions, premised on the treatment of intellectual disability as a contraindication for pregnancy.Footnote 76 Although the complaint had relied on Article 8, the Court recategorised the case as falling under Article 3, given the gravity of the alleged non-consensual procedures and the applicants’ vulnerability resulting from their gender, intellectual disability and institutionalisation.Footnote 77 The Court noted that, generally and, in particular, in the respondent State, ‘harmful stereotypes exist according to which persons with mental disabilities should not procreate’.Footnote 78 It concluded that the Moldovan legal framework lacked safeguards to ensure prior consent to medical interventions for intellectually disabled persons, as well as adequate criminal legislation to dissuade the practice of non-consensual medical interventions on such persons; the respondent had thereby failed to meet its positive obligation to establish and implement a system providing protection to women living in psychiatric institutions against ‘serious breaches of their integrity’.Footnote 79
Interestingly, by placing the case on the terrain of non-derogable Article 3 rights, the Court avoided taking a stand on whether the welfare of future children justifies non-elective contraceptive measures for patients institutionalised on an indefinite basis and incapable of assuming the responsibility of a child. The ruling rejects paternalism and conveys support for nearly absolute rights to bodily self-determination, even where the exercise of reproductive rights is interlinked with the interests of children born to parents who cannot look after them (and those of society as a whole, considering the burden on the public care system). The Court’s choice of moving the complaint under Article 3 intimates that non-consensual treatment preventing reproduction is so profoundly incompatible with human dignity and so abhorrent to a civilised society that there is no scope for a balancing of interests. By the same token, if the welfare of the child to be born does not justify compulsory birth control measures for patients institutionalised on account of intellectual disability and unable to rear children, it is exceedingly difficult to justify the refusal to provide ART to functional parents on the grounds of the future child’s welfare – for example, the refusal to authorise donor insemination or the posthumous use of frozen gametes on the basis of the future child’s right to know and be cared for by his/her birth parents.
Albeit less extensive, the judicial practice under the ACHR echoes Strasbourg principles on protection against forced sterilisation. In I.V. v. Bolivia, the Inter-American Court of Human Rights (IACtHR) held that the sterilisation, by tubal ligation, performed on a woman in hospital during an emergency caesarean section without her informed consent breached her rights to health and personal autonomy.Footnote 80 The judgment stressed that the absence of legal safeguards for the protection of the patient’s reproductive health was a serious violation of the rights to autonomy and reproductive freedom, and specifically the right to make autonomous decisions in relation to one’s body and life plans.Footnote 81 In the medical context, informed consent was said to ensure the practical effect of the norm guaranteeing individual autonomy, which in turn is an element of human dignity.Footnote 82 The judgment recalled that both the ACHR and the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against WomenFootnote 83 established positive obligations, such as the adoption of preventative measures to secure the right to reproductive health and autonomy against violations, including through the clear regulation of health services and by monitoring the observance of the informed consent requirement in both public and private medical centres.Footnote 84
Article 8 ECHR has further been interpreted as requiring reparation for unlawful sterilisation. In G.B. and R.B. v. The Republic of Moldova,Footnote 85 the non-consensual sterilisation at a State-owned hospital had already been assessed by domestic courts as a ‘serious interference with the first applicant’s physical and psychological integrity’.Footnote 86 The Strasbourg dispute focused on the level of compensation in civil proceedings against the hospital and the obstetrician for medical negligence and on the fact that domestic courts had absolved the obstetrician of criminal liability. It was held that the failure to provide a victim of unlawful sterilisation adequate compensation in civil proceedings against the hospital and the medical professional guilty of negligence violated Article 8. The level of compensation was found considerably below the minimum level of compensation the ECtHR awards for breaches of Article 8, especially considering the extreme nature of the interference with the woman’s Convention rights.Footnote 87 Remarkably, the patient’s husband was a co-applicant and claimed a breach of his right to respect for family life. Although the Court chose to address the case through the lens of the woman’s right to respect for her physical integrity,Footnote 88 it recognised ‘the devastating effect on the first applicant from having lost her ability to reproduce’Footnote 89 and also ‘the particularly serious effect … on her family life with the second applicant’, awarding the spouses compensation jointly in respect of non-pecuniary damage.Footnote 90
Finally, medical errors causing irreparable damage to a person’s reproductive capacity can also trigger a breach of Article 8 ECHR. Csoma v. Romania condemned the failures in the treatment inducing a non-urgent abortion on foetal abnormality grounds, which compromised the woman’s ability to bear children.Footnote 91 The applicant’s private life was found infringed ‘by not being involved in the choice of medical treatment and properly informed of the risks involved in the medical procedure’.Footnote 92 The Court’s emphasis was on the privacy-related rights to informed consent to treatment, including the foreseeability of risks, and physical integrity.Footnote 93 The impact on family life under Article 8 and on the right to found a family under Article 12 may have deserved separate acknowledgement.Footnote 94 The ruling also indicated that deficiencies in the investigation into the doctors’ liability for medical negligence irreversibly impairing the ability to bear children breached Article 8.Footnote 95
In sum, when Strasbourg claims concern natural procreation, the right to respect for private and family life primarily gives rise to negative obligations (occasionally assessed under Article 3 due to the gravity of the interference with physical integrity and human dignity). However, there are also positive obligations, designed to prevent interferences with a person’s reproductive capacity: to ensure that the law requires doctors to inform patients of the risks involved in a medical procedure (e.g. loss of procreative capacity);Footnote 96 to afford redress for infringements of private life caused by the lack of informed consent to a procedure involving the risk of losing the ability to reproduce (e.g. through civil/disciplinary proceedings capable of establishing liability for medical negligence and awarding compensation);Footnote 97 to establish and effectively apply a system providing protection to intellectually disabled women in psychiatric institutions against serious breaches of their physical integrity,Footnote 98 such as forced birth control and forced termination of pregnancy, in light of their special vulnerability;Footnote 99 to ensure legal safeguards for the reproductive health of women whose ethnicity places them at risk, in particular protection against sterilisation without the patient’s knowledgeFootnote 100 or without their full and informed consent.Footnote 101
This stream of case law firmly established an obligation to protect against, and offer redress for, actions impairing an individual’s natural capacity to procreate. When the exercise of reproductive autonomy goes beyond natural conception, human rights obligations to permit or facilitate parenthood projects have been slower to crystallise. Only recently has international jurisprudence started to identify such obligations, in the Strasbourg Court and marginally elsewhere. These developments will be considered in the following section.
1.2.2 Medically Assisted Procreation: Interferences or Lacunae?
The conceptual boundary between negative and positive obligations is much less clear-cut in relation to assisted procreation claims. As Erin Nelson has argued, ‘women’s reproductive autonomy and reproductive health are interwoven’ and hence respect for reproductive autonomy ‘demands an active and engaged State’.Footnote 102 The ability to effectively exercise procreative choice may require State regulation and State assistance. Indeed, occasionally the Court has refused to clarify whether the issue in contention concerned a positive or negative obligation. In Dickson v. The United Kingdom, the parties disagreed on whether the refusal of assisted insemination facilities for prisoners constituted an interference with the ‘existing right to beget a child’ or a ‘failure by the State to grant a right which did not previously exist’; for the Chamber, the complaint regarded a positive obligation.Footnote 103 The Grand Chamber did not consider it necessary to decide on the exact classification of the obligation at stake, insofar as the core issue was ‘whether a fair balance was struck between the competing public and private interests involved’,Footnote 104 a question common to both types of obligations:
Although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference. … There may be positive obligations inherent in an effective respect for private and family life. These obligations may involve the adoption of measures designed to secure respect for private and family life even in the sphere of the relations of individuals between themselves. The boundaries between the State’s positive and negative obligations under Article 8 do not lend themselves to precise definition. The applicable principles are nonetheless similar. In particular, in both instances regard must be had to the fair balance to be struck between the competing interests.Footnote 105
Moreover, the Court sometimes acknowledges that both analytical approaches are equally appropriate in the dispute at hand. In S.H. and Others v. Austria, the Grand Chamber viewed the prohibition on the use of donated gametes for IVF treatment as potentially concerning either a positive or a negative obligation:
The legislation in question can be seen as raising an issue as to whether there exists a positive obligation on the State to permit certain forms of artificial procreation using either sperm or ova from a third party. However, the matter can also be seen as an interference by the State with the applicants’ rights to respect for their family life as a result of the prohibition … of certain techniques of artificial procreation that had been developed by medical science but of which they could not avail themselves because of that prohibition. In the present case, the Court will approach the case as one involving an interference with the applicants’ right to avail themselves of techniques of artificial procreation … since they were in fact prevented from doing so by the operation of the law.Footnote 106
The Court’s preference for the latter model seems appropriate, as the ban prevented both the use of donor gametes by part-infertile couples and the donation of gametes by individuals who were willing to enable others to reproduce. As Harris et al. suggested, ‘where a couple can procreate by whatever means, the state should not impose unreasonable restrictions on their possibility of doing so’.Footnote 107 Nor is it obvious that measures promoting social parenthood (already accommodated through adoption and presumptions of fatherhood) should be more exceptional in the assisted reproduction context. Similarly, in Pejřilová v. The Czech Republic, the Court found that the refusal to allow a widow to use her late husband’s frozen gametes to conceive a child through artificial insemination could be seen as concerning either positive or negative obligations; again, it chose the latter approach.Footnote 108
In other cases, the Court attached a label to the dispute without clarifying the exact obligation at stake or the basis for its categorisation. In Evans v. The United Kingdom, the Grand Chamber merely disagreed with the domestic examination of the case as one involving an interference, in circumstances where the law precluded the preservation/implantation by the clinic of embryos created with the applicant’s ova after the male gamete provider had withdrawn his consent.Footnote 109 Without further justification, the Court ‘consider[ed] that it is more appropriate to analyse the case as one concerning positive obligations, the principal issue … being whether the legislative provisions as applied in the present case struck a fair balance between the competing public and private interests involved’.Footnote 110 The absence of elaboration is all the more problematic since several dissenters viewed the case ‘as one of interference with the applicant’s right to respect for the decision to become a genetically related parent’;Footnote 111 in fact, an essential feature of the case was the applicant’s supervened infertility, making the cryopreserved embryos her last chance at parenthood. For the Chamber, the question was ‘whether there exists a positive obligation on the State to ensure that a woman who has embarked on treatment for the specific purpose of giving birth to a genetically related child should be permitted to proceed to implantation of the embryo notwithstanding the withdrawal of consent by her former partner, the male gamete provider’.Footnote 112 Since the statute authorised the destruction of embryos upon the unilateral request of one progenitor, regardless of the circumstances of the other, the complaint arguably concerned an obligation to refrain from interfering with the applicant’s last surviving genetic material.
The categorisation of the case can be counterintuitive sometimes. In Callamand v. France, the refusal to grant the applicant contact with the child born to her former cohabitant through donor insemination was viewed through the lens of positive obligations to ensure effective respect for private and family life; for the Court, the adverse impact on the applicant’s family life stemmed from the couple’s separation, not from an active interference of a public authority, and the judge had not terminated existing contact rights (even though the appellate courts had quashed the favourable first-instance decision).Footnote 113 Conversely, in K.K. and Others v. Denmark, the refusal to allow the intended non-genetic mother to adopt her husband’s surrogate-born children was assessed as an interference with the parents’ and children’s private and family life,Footnote 114 even though there is no right to adopt an unrelated child under the Convention,Footnote 115 and other legal mechanisms were in place to prevent any practical disadvantages for the children.
Unexpectedly perhaps, given the medical support and legal framework required to establish parenthood through recourse to new genetic technologies, reproductive rights emerge from the case law as engaging mostly negative obligations, rather than obligations of assistance. As soon as a particular technology exists in the realm of medical possibility, the failure to grant access is seen as raising an obstacle to procreative autonomy, not as a lacuna. This is evident in the case law concerning the right to a healthy child and the right of access to treatment with donated gametes. Thus, in Costa and Pavan v. Italy, the ban on IVF and PGD allowing the selection of healthy embryos was analysed as an interference with the prospective parents’ private and family life.Footnote 116 When access to a particular technology is legally available but hindered by a private party such as a private hospital or a doctor not employed by the State, a negative obligation still arises in relation to the conduct of court proceedings for compensation for medical negligence (e.g. the failure to refer a patient at risk of foetal abnormality for antenatal screening in A.K. v. Latvia).Footnote 117 The retrospective application, to cases pending in court, of a new bar restricting the level of compensation for parents whose children’s disabilities had gone undetected before birth, due to inappropriate tests, was also seen as an active interference in Maurice v. France,Footnote 118 specifically with the right to peaceful enjoyment of one’s possessions under Article 1 of Protocol 1.Footnote 119 In the area of third-party reproduction, the Court has recognised that ‘the right of a couple to conceive a child and to make use of medically assisted procreation for that purpose is also protected by Article 8, as such a choice is an expression of private and family life’;Footnote 120 consequently, as held in S.H. and Others v. Austria, the prohibition on the use of donated gametes for IVF ‘involves an interference with the applicants’ right to avail themselves of techniques of artificial procreation’.Footnote 121 Interestingly, so far, the case law has focused on legal bans rather than on access to State-subsidised treatment, which might be seen, by contrast, as a matter of positive obligations. While the idea that policymakers can decide who deserves to procreate is unappealing,Footnote 122 future case law might entertain challenges to the allocation of resources and the scope of public assistance for reproductive plans one can legitimately expect.
Cases concerning a couple’s ability to use their frozen embryos for reproductive purposes have also been assessed from the perspective of negative obligations vis-à-vis the decision to become a parent and the right to make use of medically assisted procreation.Footnote 123 Specifically, in Knecht v. Romania, the seizure of a couple’s embryos during the course of investigations into the fertility clinic’s credentials, delaying the applicants’ reproductive plans, was recognised as an interference.Footnote 124 In fact, ‘the joint parental project of the applicants, who wish to have a child by making use of assisted procreation using their own embryos is an intimate aspect of their private life’.Footnote 125 While the intention to become a parent is absent in cases regarding the ability to decide the fate of embryos no longer intended for procreation, the Court conceded in Parrillo v. Italy that ‘the ban … on donating to scientific research embryos obtained from an in vitro fertilisation and not destined for implantation constitutes an interference with the applicant’s right to respect for her private life’.Footnote 126 Indeed, ‘the applicant’s ability to exercise a conscious and considered choice regarding the fate of her embryos concerns an intimate aspect of her personal life and accordingly relates to her right to self-determination’.Footnote 127
In the context of biological parenthood achieved through a surrogacy arrangement (first addressed in Mennesson v. France), the refusal of domestic authorities to legally recognise the family ties created abroad between the intended parents and their surrogate-born children was seen to amount to an interference with their right to respect for their private and family life and, hence, to raise an issue with regard to the State’s negative obligations rather than positive obligations.Footnote 128 So was the refusal, in Foulon and Bouvet v. France, to recognise biological single commissioning fathers as the legal fathers of children born through foreign surrogacy.Footnote 129 In a similar vein, in A.L. v. France, the rejection of the biological father’s request to establish his paternity vis-à-vis a child born through a failed illegal gestational surrogacy arrangement (after the surrogate mother sold the child to another couple) amounted to an interference with his private life and required justification.Footnote 130 In D. v. France, the refusal to register the full details of a child’s foreign birth certificate, in particular not recognising the genetic/intended mother as the legal mother, constituted an interference with the child’s right to private life.Footnote 131 In a case brought by a surrogate-born child whose birth certificate indicated the genetically unrelated surrogate and her husband as her parents (H. v. The United Kingdom), the Court indicated that the legal uncertainty flowing from the automatic recognition of the surrogate’s husband, rather than the genetic intended father, as her father on her birth certificate constituted an interference with her private life.Footnote 132 Finally, in D. and Others v. Belgium, the refusal to provide a travel document allowing the admission into the country of a child born through surrogacy abroad, leading to its separation from the parents for several months, constituted an interference with the three applicants’ right to respect for family life and required justification under Article 8(2).Footnote 133
Even when the applicants seek a legal fiction of parenthood, as opposed to the recognition of genetic ties created through ART, the dispute tends to be framed in terms of a negative obligation. Thus, in K.K. and Others v. Denmark, the refusal to allow the commissioning mother to adopt the surrogate-born children raised with her husband (the children’s genetic and intended father) was treated as an active interference.Footnote 134 In C. and E. v. France, the refusal of the authorities to transcribe the full details of the foreign birth certificates of children born through surrogacy with the intended fathers’ sperm and donor ova, in particular not recognising the intended mothers, was equally seen as an interference with the private lives of the children.Footnote 135 In the context of male couples and surrogacy (D.B. and Others v. Switzerland), the refusal to recognise the non-biological intended father based on the foreign birth certificate, without providing an alternative route to recognition (e.g. adoption), was also assessed as an interference with the family life of all those concerned.Footnote 136 In A.M. v. Norway, the failure to recognise the intended mother who was no longer in a relationship with the genetic father, despite her involvement in the child’s conception and initial care after birth, was similarly assessed as an interference with her private life.Footnote 137 For many scholars, legal affiliation is ‘an eminently cultural datum’, not reducible to tracing biological reproduction;Footnote 138 indeed, often the individuals fulfilling a parental role are not genetically related to the children. However, it is not unremarkable to see the creation of legal ties between a person and a non-biological child in the ART context being described as a negative obligation.
Negative obligations were also found at stake in cases regarding surrogacy arrangements in which neither intended parents had biological links to the child. In Paradiso and Campanelli v. Italy, the judicial decisions resulting in the removal of a child born through foreign surrogacy from the intended non-genetic parents, his placement in the care of social services with a view to adoption, and the termination of contact with the parents amounted to an interference with the latter’s private life.Footnote 139 The refusal to recognise the intended parents of an unrelated surrogate-born child as his legal parents was examined as an interference with both the child’s and the parents’ right to family life in circumstances where family life was established de facto over several years under a foster care arrangement (Valdís Fjölnisdóttir and Others v. Iceland).Footnote 140
The Court, in Lia v. Malta, also chose to approach a complaint regarding the age limit for receiving IVF treatment as one involving an interference, because ‘it concerns the State’s decision to deny the applicants’ access to IVF procedures which were available to the population and which they sought to pay for themselves’.Footnote 141 Where no public funding for ART is available to any category of patients, the refusal to fund treatment might be seen as an omission, in that the effective exercise of reproductive choice by couples afflicted by infertility requires special measures of protection, subject to competing health needs. Some might even view State-funded ART as an economic right, governed by State discretion in the allocation of resources, rather than instrumental to the protection of civil rights and liberties. Indeed, support for publicly funded ART is not unanimous. Nelson has suggested that ‘reproductive autonomy, while an important interest, does not justify an entitlement for funding for ARTs, given all of the many healthcare needs that place demands on the finite resources of healthcare systems’.Footnote 142 The analysis ultimately depends on where one situates reproductive needs in the hierarchy of medical needs, which involves value judgments. However, the denial of publicly funded treatment for failure to meet eligibility criteria is more likely to constitute an interference (which requires justification), as well as differential treatment, potentially raising issues under Article 14 read in conjunction with Article 8.
Conversely, fewer issues in relation to ART-born children or planned recourse to ART have been examined by the Court as requiring it to pronounce on positive obligations. One such question, arising in the context of intentional parenthood and gamete donation (C.E. and Others v. France), was whether States are required to permit the creation of legal ties between a child born though donor insemination and her mother’s former female companion, who also acted in a parental role (this was viewed as a possible ramification of the obligation to ensure effective respect for private and family life).Footnote 143 The same approach was taken in relation to visitation rights: in Callamand v. France, the refusal to grant post-separation contact with the child born to the former same-sex cohabitant through medically assisted procreation with donor was analysed from the viewpoint of positive obligations to ensure effective respect for a person’s private and family life,Footnote 144 seen as requiring the authorities to strike a fair balance between competing interests.Footnote 145 The Court has also considered whether a positive obligation, inherent in effective respect for family life, mandates the recognition – as the legal father of a child born through donor insemination – of the transgender social father who was not biologically related to her (X, Y and Z v. The United Kingdom).Footnote 146
As to potential rights at the conception stage, also framed as a matter of positive obligations was the claim in Evans v. The United Kingdom that the State must permit a woman, under special circumstances (such as intervening infertility), to use the frozen embryos created with a former partner, notwithstanding his withdrawal of consent; for the Court, the question was whether such an obligation fell within the broader obligation to ensure effective respect for a person’s decision to become a genetic parent, by striking a fair balance between competing rights (to become/not to become a parent) in the IVF context.Footnote 147 At prenatal stage, R.R. v. Poland considered the existence of a positive obligation to ensure, in practice, expecting women’s access to timely foetal diagnosis services (in fact, the State’s positive obligation to secure effective respect for physical and psychological integrity may necessitate the adoption of regulations concerning access to information about an individual’s health).Footnote 148
The ECtHR has recently had an opportunity to systematise its jurisprudence and to elaborate on the distinction between positive and negative obligations, in general and with specific reference to the regulation of parenthood following ART. In C.E. and Others v. France, both parties viewed the impossibility of establishing a parent–child relationship between a child born via donor insemination and her mother’s former female partner as an interference by a public authority with the exercise of the right to respect for private and family life.Footnote 149 The Court rejected this analysis and interpreted the case as concerning lacunae in French law, adversely impacting the applicants’ private and family life and hence the scope of positive obligations to guarantee effective respect for Article 8 rights.Footnote 150 The Court distinguished the case from previous cases analysed through the lens of negative obligations: in Mennesson v. FranceFootnote 151 and Wagner and J.M.W.L. v. Luxembourg,Footnote 152 it had examined the refusal to recognise legal ties between surrogate-born/adoptive children and their intended/adoptive parent as engaging negative obligations, to the extent that those ties had already been established under foreign laws.Footnote 153
Nonetheless, the Court recalled that the principles governing positive and negative obligations under the ECHR are similar; in both cases, the Convention requires a fair balance between the general interest and the interests of those concerned, in which the legitimate objectives listed in Article 8(2) play a certain role.Footnote 154 It conceded that the notion of ‘respect’ lacks clarity, especially as far as positive obligations are concerned, given the diversity of Member States’ practices; however, relevant elements include (a) the importance of the interest at stake for the applicant and whether the measure affects fundamental values or essential aspects of his/her private life; (b) the impact on the individual of a conflict between social reality and law; (c) the coherence of legal and administrative practices; and (d) the impact on the State, in the event that the Court requires it to accommodate the claim in question.Footnote 155
In addition, States enjoy a certain margin of appreciation in implementing both positive and negative obligations.Footnote 156 The margin is narrow when a particularly important aspect of the individual’s existence or identity is at stake; it is, conversely, wider when there is no consensus in Europe on the relative importance of the right at stake or the means for safeguarding it, particularly where the case raises delicate moral or ethical questions; it is also wide when the State must achieve a balance between competing private and public interests or different rights protected by the Convention.Footnote 157 Sometimes, there are both elements expanding and restricting the margin. In the case at hand, the Court found that the recognition of a parent–child relationship between a child and an unrelated person raised ethical questions, and no consensus existed in Europe on the establishment of legal affiliation between a child and the former same-sex partner of the child’s mother, both of which supported a significant margin of appreciation.Footnote 158 At the same time, an essential aspect of the individual’s identity was at stake (the parent–child link, especially during a person’s minority), which reduced the margin left to the State as regards the child’s rights.Footnote 159 Moreover, the ruling stressed that, even within this narrow margin, States’ choices do not escape the control of the Court, upon which falls the task of ensuring that the child’s best interests are treated as the primary consideration.Footnote 160
An examination of Strasbourg decisions in the area of procreative rights suggests that the scrutiny of States’ compliance with positive obligations is not less stringent than in cases seen as raising questions of negative obligations. Although the Court has repeatedly maintained that similar principles apply under either theoretical approach,Footnote 161 if a case regards the obligation to ensure effective respect for the right, one might expect States to retain greater discretion in striking a fair balance and choosing the appropriate means of protection, whereas, if the case is construed as regarding a negative obligation, the burden is on the State to demonstrate the necessity and proportionality of the interference. Nonetheless, the case law on procreative rights appears to confirm that the categorisation of the obligation potentially breached as positive or negative does not have a decisive impact on the applicants’ prospects of success; in fact, it is a poor predictor of the outcome of the case.Footnote 162 Against this backdrop, the following chapters will explore the factors hampering the development of reproductive rights in international case law, but also its rather extraordinary departure from a narrow view of procreation and parenthood.
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